DG Employment and Social Affairs Mobility in the Civil Services in the EU: legal significance and implications Berlin - 30.09.2004 Ursula Scheuer European Commission DG Employment and Social Affairs Ursula.Scheuer@cec.eu.int

Overview Free movement of workers – General rules Free movement of workers in the public sector – Specific problems

Definition of public sector worker in the sense of Article 39 EC ECJ: Worker is someone who undertakes genuine and effective work under the supervision of someone else for which he is paid Whole personnel of public sector fulfills these criteria Therefore everybody working in the public sector is a worker in the sense of Article 39 EC

Free movement of workers in the public sector - Specific aspects and obstacles Nationality condition Recognition of diplomas for access to the public sector Recognition of professional experience and seniority acquired in another Member State for access to the public sector and for determining professional advantages Extension of the rules on co-ordination of social security schemes to special schemes for civil servants

Nationality condition (1) Constant interpretation of Article 39 (4) EC by the ECJ: The Member States are authorised to restrict public service posts for their nationals only if they are directly related to the specific activities of the public service, namely those involving the exercise of public authority and the responsibility for safeguarding the general interest of the State including those of public bodies such as local authorities. Functional approach Case-by-case approach Examples: secondary school teachers, researchers, nurses, electricians, plumbers, railway workers Recent jurisprudence (C-405/01 and C-47/02): posts may be reserved for nationals of a Member State only if the rights conferred by public law are actually exercised on a regular basis and do not represent a very minor part of the activities

Nationality condition (2) Commission Communication of 1988 – focused on 4 sectors must be open: bodies responsible for administering commercial services (e.g. public transport, electricity and gas supply, posts and telecommunications) public health care services teaching in State educational establishments research for non-military purposes can be reserved: armed forces, forces for the maintenance of order, judiciary, tax authorities, diplomatic corps, bodies in charge of legal acts and their implementation

Nationality condition (3) Main points of current position of the Commission independently of the sector all posts which do not involve public authority and the responsibility for safeguarding the general interests of the State must be open to EU-workers Not all posts in the fields of armed forces, police/forces of maintenance of order, judiciary, tax authorities and diplomatic corps may be restricted; e.g. administrative tasks, technical consultation and maintenance have to be open

Nationality condition (4) Posts in administration which deal with preparation of legal acts, their implementation and monitoring of their application may only be restricted if they involve management and decision-making Recruitment competitions may only be restricted if all posts accessible via that competition fulfil the criteria of Art. 39 (4) EC Civil service status may not be refused

Recognition of diplomas for access to the public sector (1) Existing directives on professional recognition of diplomas are applicable to regulated professions in the public sector If only a certain level of education or one of several diplomas is required these directives are not applicable

Recognition of diplomas for access to the public sector (2) Commission’s position on these cases Two situations have to be distinguished: Diploma attesting to a certain level of education without the content being specified Diploma attesting to a level of training meeting certain content-related criteria without the contents being deemed to constitute professional training for a regulated profession

Recognition of professional experience and seniority (1) Concerns access to the public sector and determination of professional advantages Indirect discrimination Five ECJ-judgments: 1994, Scholz (C-419/92) 1998, Schöning (C-15/96) 1998, Commission v. Greece (C-187/96) 2000, Österreichischer Gewerkschaftsbund (C-195/98) 2003, Köbler (C-224/01)

Recognition of professional experience and seniority (2) Main aspects of ECJ-jurisprudence previous periods of comparable employment acquired in another Member State must be taken into account requirements which apply to periods spent in other Member States must not be stricter than those applicable to comparable periods spent in the home Member State Problems of application of ECJ-jurisprudence: criteria of comparison practical aspects of comparison

Recognition of professional experience and seniority (3) Commission’s position on main issues: Member States have the duty to compare the professional experience If experience in any job in the public sector is taken into account, also experience in any job in the public sector of another Member State must be taken into account If a specific experience is taken into account, the Member State has to compare its system with the system of the other Member State to compare the previous periods of employment (status in previous work as civil servant or employee may not be used as criterion of comparison)

Extension of the rules on co-ordination of social security schemes to special schemes for civil servants Reg. 1408/71 always applied without difference to public sector employees and civil servants belonging to the general social security scheme Art. 4 (4) of Reg. 1408/71 originally excluded special schemes for civil servants from its scope ECJ-judgment Vougioukas 1995 (C-443/93) Reg. 1606/98 extended Reg. 1408/71 to special schemes for civil servants - however: certain derogations

Conclusion Many developments concerning free movement of workers in the public sector - however: specific obstacles still exist To improve the situation joint efforts are necessary: Member States have to undertake reforms and to control the application of their rules in practice Migrant workers need information and have to invoke EC-law in national proceedings Commission provides information to migrant workers and national authorities, gives opinions on preliminary questions and proceeds with infringement procedures